General Business Terms
§1 Geltungsbereich, Form
(1) These General Terms and Conditions (GTC) shall apply to all our business relations with our customers (“Contractual Partner”). The GTC shall only apply if the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the contractual partner’s order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the contractual partner shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the contractual partner without reservation in the knowledge of the contractual partner’s GTC.
(4) Individual agreements made with the contractual partner in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications of the contractual partner with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proofs, in particular in case of doubts about the legitimacy of the declaring party, remain unaffected.
(6) References to the applicability of statutory provisions shall only have to clarify significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract, offers, documents
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the contractual partner with catalogs, documentation (e.g. product data sheets, price lists, calculations, references to DIN standards), and other product descriptions, or documents – also in electronic form.
(2) The order of the goods by the contractual partner shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 3 working days of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the contractual partner.
(4) We reserve the title or copyright to all offers and cost estimates submitted by us as well as samples, brochures, catalogs, and other documents and aids (“Documents”) made available to the contractual partner.
§ 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approx. 2 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the contractual partner of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the contractual partner. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the contractual partner is required.
(4) The rights of the contractual partner pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery is ex-works, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the contractual partner, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in a particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the contractual partner at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the contractual partner is in default of acceptance.
(3) If the contractual partner is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the contractual partner is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of EUR 500.00 per calendar day, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment.
The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The contractual partner shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex-works, plus statutory value-added tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the contractual partner shall bear the transport costs ex-works and the costs of any transport insurance requested by the contractual partner. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) shall be deemed agreed in accordance with the respectively valid price list. Any customs duties, fees, taxes, and other public charges shall be borne by the contractual partner.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiry of the aforementioned payment deadline, the contractual partner shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(5) EUR 10.00 shall be charged for the first reminder sent after the default has occurred, and EUR 20.00 for the second reminder. The contractual partner shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned flat-rate.
(6) The contractual partner shall only be entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the contractual partner shall remain unaffected, in particular, pursuant to § 7 para. 6 sentence 2 of these GTC.
(7) If, after the conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the contractual partner’s lack of ability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
(1) Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The contractual partner must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct in breach of contract on the part of the contractual partner, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand the surrender of the goods on the basis of the reservation of title. The demand for a return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the contractual partner does not pay the purchase price due, we may only assert these rights if we have previously set the contractual partner a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the contracting party shall be authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the products resulting from the processing, mixing, or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The contracting party hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the contractual partner stated in paragraph 2 shall also apply with regard to assigned claims.
(c) The contractual partner shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the contractual partner meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the contractual partner inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment. In addition, in this case, we shall be entitled to revoke the contracting party’s authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the contractual partner.
§ 7 Claims for defects of the contractual partner
(1) The statutory provisions shall apply to the rights of the contractual partner in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper handling or defective labeling or operating instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the contractual partner or another entrepreneur, e.g. by mixing them with another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications that are the subject of the individual contract or which were publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods. Our information on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, application quantities, and technical data), as well as our representations of the same (e.g. product data sheets), are only approximately authoritative unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement by equivalent components, are permissible insofar as they do not impair the usability for the contractually intended purpose.
(3) Insofar as the condition has not been agreed upon, it is to be assessed according to the statutory regulation whether a defect is present or not (§ 434 para. 1 p. 2 and 3 BGB). However, we shall not assume any liability for public statements by third parties (e.g. advertising statements) to which the contractual partner has not referred to us as being decisive for the purchase.
(4) In principle, we shall not be liable for defects of which the contractual partner is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the contractual partner’s claims for defects presuppose that it has complied with its statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of goods intended for further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection, or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects must be notified to us in writing within 5 working days of delivery, and defects that are not apparent on inspection must be notified within the same period of time from the time of discovery. If the contractual partner fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the contractual partner paying the purchase price due. The contractual partner shall, however, be entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The contractual partner shall give us the time and opportunity required for the subsequent performance owed, in particular, to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the contractual partner shall return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the separation of the defective item after mixing it with other materials, nor does it include mixing it again if we were not originally obliged to mix it.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs and, if applicable, separation and mixing costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the contractual partner for the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the contractual partner.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the contractual partner shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be notified immediately of any such self-execution, if possible in advance. The right of self-execution shall not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
(10) If the supplementary performance has failed or if a reasonable period to be set by the contractual partner for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the contractual partner may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(11) Claims of the contractual partner for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and shall otherwise be excluded.
§ 8 Other liability
(1) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies on and may rely on); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the contractual partner under the Product Liability Act.
(4) The contractual partner may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the contractual partner (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance. Special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall remain unaffected.
(2) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the contractual partner based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages of the contractual partner according to § 8 para. 2 sentence 1 and sentence 2(a) as well as according to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
§ 10 Applicable law and place of jurisdiction
(1) These GTC and the contractual relationship between us and the contractual partner shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the contractual partner is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Zwenkau. The same shall apply if the contractual partner is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to these GTC or a prior individual agreement or at the general place of jurisdiction of the contractual partner. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.